//  1/14/19  //  In-Depth Analysis

Take Care is pleased to present a symposium on Andrew Cohen's important new book, Prosecuting the President: How Special Prosecutors Hold Presidents Accountable and Protect the Rule of Law (Oxford University Press).

“I shall resign the presidency effective at noon tomorrow.” With these words, spoken just after 9 p.m. on August 8, 1974, Richard Nixon ended an American tragedy. In its place, he created a mystery. The most powerful man in the most powerful country on earth had been driven from office by a special prosecutor he could have fired at any time. How could this happen? Behind that mystery lay another, even deeper one. Why was such a subordinate official entrusted with investigating the president of the United States?

Two hundred years earlier, Americans fought a revolution to overthrow the maxim that “the King can do no wrong.” In its place, they enshrined the fundamental principle that no one, not even the president, is above the law. Few ideas have been more central to the nation’s democratic self-image. The words “Equal Justice Under Law” are engraved above the entrance to the United States Supreme Court.

Yet no law required Richard Nixon to appoint an outside prosecutor when credible evidence emerged that he had committed a crime. When Nixon chose to appoint such a prosecutor voluntarily, no law barred him from shutting down the investigation to save his own skin. How could the nation have left its sacred ideals so weakly protected?

Since Nixon’s resignation, these mysteries have only deepened. In 1978, Congress created a strong independent prosecutor who could not easily be fired by the president. But this solution quickly proved controversial, and Congress scrapped it after the impeachment of President Bill Clinton in 1999. Today, the United States is right back where it was when Nixon resigned. Special prosecutors still strike fear into the hearts of presidents, who can still fire them at any time.

My new book, Prosecuting the President, attempts to unravel the mystery. More specifically, it answers three questions. First, how did special prosecutors come to exercise significant power, despite serving purely at the pleasure of the president? Second, why has the United States rejected stronger institutional safeguards of the sort embraced by other advanced democracies? Third, what does this history means for special prosecutors today?

The short answer to all three is that special prosecutors function as catalysts for democracy. By raising the visibility of presidential misconduct, they enable the American people to hold the president accountable for his actions. But special prosecutors, just like presidents, can abuse their power. To guard against this risk, the president retains the power to fire a special prosecutor at any time. If he exercises that power corruptly or capriciously, special prosecutors have no legal remedy. But they are not unprotected. The president must ultimately answer to the American people. This has proved a surprisingly powerful deterrent, though also a fragile one. It is the best explanation for why special counsel Robert Mueller still has a job today—and the best remaining hope for holding President Trump accountable.

The first half of Prosecuting the President traces the history of special prosecutors from 1875 to 2018. The stories recounted in these chapters encompass a stolen presidential nomination, shady international arms deals, huge piles of cash in suitcases, and more. The quintessentially American cast of characters includes Ulysses S. Grant, the Civil War hero and President; Edward Doheny, the powerful oil baron who inspired the movie There Will Be Blood; and a corrupt Secretary of the Interior named Albert Fall, who carried a revolver and would have fit in nicely at the O.K. Corral.

Broadly speaking, the arc of this history bends toward the rule of law, though its progress has been far from smooth. In their Gilded Age infancy, special prosecutors were often stymied by broad public cynicism and endemic government corruption. Gradually, the worst forms of corruption grew less pervasive, and public norms for official conduct became more robust. By the 1970s, those norms were strong enough that a special prosecutor investigation exposing their flagrant violation could drive a twice-elected President from office.

For two generations, Richard Nixon’s downfall served as a warning for any President tempted to fire a special prosecutor or otherwise flout the rule of law. By global and historical standards, American democratic norms remain strong today. But the rise of populism and political polarization is a worrisome trend—for future special prosecutor investigations and for American democracy more generally.

The second half of the book turns from history to law—specifically, the great constitutional questions that arise in special prosecutor investigations. These include whether the President can be charged with a crime (probably not); whether the President can be compelled to testify before a grand jury (possibly); whether the President can obstruct justice (almost certainly yes); and whether the President can fire a special prosecutor (yes, at least for now). In one form or another, all four of these questions have arisen in every special prosecutor investigation of a sitting President.

In each case, law is only one of part of the story. The stakes are so high, the legal precedents so few, and the power of courts so limited that politics matters greatly, too. This puts the lawyers on both sides in a peculiar position. They can and do make traditional legal arguments, citing the text of the Constitution and Supreme Court opinions. But in most cases, it is anybody’s guess what a court might do—or whether it will do anything at all. Many legal questions are therefore resolved through ad hoc negotiation. In such negotiations, leverage is all-important. The best leverage comes from having the court of public opinion on your side.

This may be the most important and least understood aspect of special prosecutor investigations. To misquote Justice Oliver Wendell Holmes, the law is not a “brooding omnipresence in the sky” that supplies clear answers to all disputes. Rather, in the highly charged context of investigating the President, the law is a complex form of prognostication. It combines “what the courts will do in fact”—Holmes again—and what the public will allow the parties to get away with. This gives ordinary Americans enormous power and enormous responsibility.

The stories recounted in these chapters encompass dramatic Supreme Court showdowns, Oval Office trysts, Mexican money laundering, and more. The cast of characters includes Alexia Morrison, a young mother making her first argument before the United States Supreme Court; Paul Manafort, the international man of mystery who chaired Donald Trump’s presidential campaign; and the team of Ivy League whiz kids that brought down Richard Nixon. Broadly speaking, these stories attest to the power of special prosecutors to hold Presidents accountable. They also underscore the formidable obstacles that special prosecutors face. Most of all, they demonstrate the central role of democratic politics in determining the success or failure of special prosecutor investigations.

Ultimately, only the American people can decide whether the President is above the law. At any given moment, this question can seem like a purely partisan one. Anyone who likes the current President—whoever he is—will be tempted to view legal constraints on his power as an irritating inconvenience. All Americans, however, have a profound stake in preserving the “government of laws and not of men” passed down to us by previous generations.

The alternative is a system in which the President is “the only one that matters,” to quote Donald Trump’s vainglorious self-description. That sort of despotism is just what the American founders fought a revolution to overthrow. It is also what many of our ancestors fled their home countries to escape. Special prosecutors can help to ward off this threat, but only with our help. Prosecuting the President strives to provide the information every American needs to perform this civic duty intelligently and responsibly.

I thank the editors of Take Care for hosting this symposium and look forward to a lively discussion.

Adapted from the Prosecuting the President by Andrew Coan

© Oxford University Press 2019


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